Unjust Enrichment and Public Law

This book examines claims involving unjust enrichment and public bodies in France,England and the EU. Part 1 explores the law as it now stands in England and Wales as a result of cases such as Woolwich EBS v IRC, those resulting from the decision of the European Court of Justice (ECJ) in Metallgesellschaft and Hoechst v IRC and those involving Local Authority swaps transactions. So far these cases have been viewed from either a public or a private law perspective, whereas in fact both branches of the law are relevant, and the author argues that the courts ought not to lose sight of the public law issues when a claim is brought under the private law of unjust enrichment, or vice versa. In order to achieve this a hybrid approach is outlined which would allow the law access to both the public and private law aspects of such cases.

Since there has been much discussion, particularly in the context of public body cases, of the relationship between the common law and civilian approaches to unjust enrichment, or enrichment without cause, Part 2 considers the French approach in order to ascertain what lessons it holds for England and Wales. And finally, as the Metallgesellschaft case itself makes clear, no understanding of such cases can be complete without an examination of the relevant EU law. Thus Part 3 investigates the principle of unjust enrichment in the European Union and the division of labour between the European and the domestic courts in the ECJ's so-called 'remedies jurisprudence'. In particular it examines the extent to which the two relevant issues, public law and unjust enrichment, are defined in EU law, and to what extent this remains a task for the domestic courts.

Cited with approval in the Court of Appeal by Beatson, LJ in Hemming and others v The Lord Mayor and Citizens of Westminster, [2013] EWCA Civ 5912

Cited with approval in the Supreme Court by Lord Walker, in Test Claimants in the Franked Investment Income Group Litigation (Appellants) v Commissioners of Inland Revenue and another [2012] UKSC 19

Part 1 Unjust Enrichment and Public Law in England and Wales
1-Definitions and Controversies
'RESTITUTION' OR 'UNJUST ENRICHMENT'
Using the Map
The Criteria for a Claim in 'Autonomous' Unjust Enrichment
'PUBLIC BODIES' AND 'PUBLIC LAW'
CONCLUSION
2-Woolwich and the Creation of the Public Law Reason for Restitution
THE FACTS
THE BACKGROUND TO THE CLAIM
A WHOLLY PRIVATE APPROACH? POTENTIAL UNJUST FACTORS AVAILABLE TO THE WOOLWICH
Duress or Colore Officii
Inequality
No Consideration
Failure of Consideration
Mistake of Law
TWO NEW OPTIONS FOR RECOVERY
WHAT IS THE WOOLWICH UNJUST FACTOR?
Illegality
Incapacity
Absence or failure of basis
Inequality
A WHOLLY PUBLIC APPROACH: COULD RESTITUTION SIMPLY BE A RESPONSE TO A PUBLIC LAW EVENT?
THE SOLUTION: A HYBRID APPROACH
3-The Scope of the Public Law Reason for Restitution
THE SCOPE OF THE PUBLIC LAW REASON FOR RESTITUTION: EIGHT KEY QUESTIONS
Need There Have Been a Demand for the Public Law Reason for Restitution to Operate?
Need There Have Been a Protest for the Public Law Reason for Restitution to Operate?
To What Extent is the Public Law Reason for Restitution Overridden by Statute?
What Exactly Does the Claimant Recover?
Is it Always Necessary to Bring Two Separate Cases, One Action for Judicial Review and One Private Law Claim?
Over What Subject Matter does the Public Law Reason for Restitution Extend?
What Sort of Invalidity Triggers this Reason for Restitution?
Which Kinds of Body Will Give Rise to this Reason for Restitution?
THE SCOPE OF THE PUBLIC LAW UNJUST FACTOR: RESTITUTION FOR PUBLIC BODIES
The 'Swaps' Cases
4-A Hierarchy of Reasons for Restitution
THE ADVANTAGES OF THE PUBLIC LAW REASON FOR RESTITUTION OVER THE PRIVATE LAW UNJUST FACTORS
REASONS FOR RESTITUTION AND TIME LIMITS: IS A HIERARCHY POSSIBLE?
Deutsche Morgan Grenfell v IRC
FURTHER ARGUMENTS AGAINST THE HIERARCHY
Does Mistake Provide a Broader Ground of Recovery than the Public Law Reason for Restitution?
HOW WIDE ARE THE EFFECTS OF THE PUBLIC LAW REASON FOR RESTITUTION?
How Wide is the Finding of Ultra Vires?
How Far does a Claim in Unjust Enrichment Extend into Consequential Loss?
EVIDENCE FOR THE HIERARCHY AND THE ISSUE OF 'CLOSED' SWAPS
CONCLUSION
5-Defences
WHAT GENERAL IMPLICATIONS DOES THE HYBRID NATURE OF THE REASON FOR RESTITUTION HAVE FOR DEFENCES?
TIME LIMITS
PRIVATE LAW DEFENCES
Change of Position
Estoppel
Bona Fide Purchase
Impossibility of Counter-Restitution
Submission to an Honest Claim
Ultra Vires
Passing On
SPECIAL DEFENCES IN PUBLIC LAW UNJUST FACTOR CASES
Fiscal Disruption
The Law Commission's 'Special' Defence of Exhaustion of the Statutory Mechanism
Prospective Overruling
CONCLUSIONS AND FURTHER IMPLICATIONS
Part 1 Conclusions and further implications
Part 2
Unjust Enrichment and Public Law in France
6-Public Body Unjust Enrichment Claims in France; Lessons for England and Wales
THE PUBLIC/PRIVATE DIVIDE IN FRANCE
THE FRENCH LAW OF UNJUST ENRICHMENT
Enrichissement Sans Cause
Répétition de l'indu
Gestion d'affaires
ENRICHMENT WITHOUT CAUSE AND PUBLIC BODIES
Quasi-Contracts are Automatically Adjusted in their Application to Public Bodies
If Courts Have to Choose Between Two Events, Both of which are Actually Relevant to the Basis of the Claim, Some Courts Will Choose One, and Others the Other
As well as Adjusting its Quasi-Contracts to Take Account of Public Bodies, French Law Also Distinguishes between Public Law Rules and Public Law Procedure, so that even within the Private Procedure Adjustments can be Made to Take Account of the Public Nature of one of the Parties to the Claim
The 'Absence of Cause' Approach does not Necessarily Provide a Better Solution for Public Body Enrichment Cases
The Need to Accommodate Public Bodies in Private Claims has a Tendency to Change the Rules of Private Law Itself
CONCLUSION
Part 3
Unjust Enrichment and Public Law in the European Union
7-Unjust Enrichment and the EU Institutions
AN EU LAW OF UNJUST ENRICHMENT?
UNJUST ENRICHMENT AS A GENERAL PRINCIPLE OF EU LAW
Staff Cases
Annulment Cases
Three Party Cases
UNJUST ENRICHMENT: ONLY A 'GENERAL PRINCIPLE' OF EU LAW
CONCLUSION
8-Unjust Enrichment in National and European Law, and the 'Remedies' Jurisprudence of the ECJ
HISTORICAL DEVELOPMENT OF THE RELEVANT EUROPEAN UNION LAW
THE MEMBER STATE/EU DIVIDE: REMEDIES IN NATIONAL COURTS FOR BREACH OF EUROPEAN LAW
The Principles of National Procedural Autonomy, Equivalence and Effectiveness, and the Three Phases of the ECJ's Case Law
UNJUST ENRICHMENT AND ULTRA VIRES IN NATIONAL AND EU LAW; TWO DIFFERENT MODELS FOR ANALYSING THE DIVISION OF LABOUR BETWEEN THE MEMBER STATES AND THE EU
Two important factors against Model 2
Cases in which a Member State or a National Intervention Agency Levies Money in Contravention of EU Law
Cases in which an NIA or the EU Pays Out Money in Breach of EU Law which it then Seeks to Recover
IS THERE AN EU LAW 'EVENT' OF ULTRA VIRES IN CASES INVOLVING BOTH EU AND NATIONAL LAW?
CONCLUSION-THE IMPACT OF EU LAW ON NATIONAL UNJUST ENRICHMENT CLAIMS INVOLVING PUBLIC BODIES

“The book casts a fresh light on the relationship between ultra vires conduct of public bodies and the reason underlying rights to restitution in such circumstances. It is a well-written and valuable contribution to both restitution and public law scholarship. This work is likely to be very valuable not only to academics but also to practitioners (tax and non-tax) advising on restitution claims involving national or EU public bodies.” –  Rafal Zakrzewski, British Tax Review, No. 3

“Williams...presents a clear and well-argued case for a public law of unjust enrichment. Her approach is thoughtful and considered covering key cases in English, French and EU law, and focuses on an area of law of particular topicality....While her argument does, as she states, remain normative, lacking case law support, she nevertheless provides a lucid and well-researched argument for reform. Williams must thus be praised for drawing together and critically appraising the leading cases in this field and for providing valuable insight into this developing area of the law.” –  Paula Giliker, European Law Review, Volume 36

“Unjust Enrichment and Public Law is an important contribution to this topical subject.

The discussion of English law is comprehensive and well argued, and will interest both public and private lawyers.

Unjust Enrichment and Public Law is a well-written and well-presented book, which does much to advance our understanding of this difficult area of law. It deserves the attention of lawyers across the public/private divide.


” –  Paul S. Davies, The Law Quarterly Review, Volume 127